Retaliation and Discrimination Claims

What happens if an employee claims retaliation for an EEOC or discrimination complaint?

Chapter 21 of the Texas Labor Code creates a civil cause of action in favor of victims of specified unlawful employment practices and setting forth remedies for victims of unlawful employment practices. An employer commits an unlawful employment practice if it retaliates against a person who makes or files a charge under Chapter 21.

First, the employee must exhaust administrative remedies before filing a lawsuit. The law is clear that the exhaustion of administrative remedies is a mandatory before filing a civil action alleging violations of the CHRA. Failure to exhaust administrative remedies creates a jurisdictional bar to any lawsuit, which means that the court should not go forward with the lawsuit until the administrative process is complete.

An employee would-be Chapter 21 claimant must first file an administrative complaint with the civil rights division of the Texas Workforce Commission or the EEOC. The complaint must be filed no later than the 180th day after the alleged unlawful employment practice occurred.

Although the statute mentions only the civil rights division of the Texas Workforce Commission, regulations have expanded the claimant’s options to include filing with the EEOC as well. Thus, “[a] claimant may file a complaint with either the EEOC, the federal agency authorized to investigate charges of discrimination, or the TWC, the Texas equivalent.

When an employee suit under Chapter 21, he or she is limited to the specific issue made in the employee’s administrative complaint and any kind of discrimination like or related to the charge’s allegations. Retaliation is a distinct theory of liability that is not encompassed by other theories of discrimination. Retaliation is a different legal theory from race-based discrimination.

Retaliation is an independent violation of the TCHRA and occurs when an employer retaliates or discriminates against a person who makes or files a charge or claim. Some appellate courts have held that a Chapter 21 claimant is not required to exhaust administrative remedies as to a retaliation claim if the retaliation occurs after the claimant has filed an EEOC charge alleging some other theory of illegal conduct. See, e.g., Elgaghil v. Tarrant Cnty. Junior Coll., 45 S.W.3d 133, 141–42 (Tex. App.—Fort Worth 2000, pet. denied); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 738 (Tex. App.—Houston [14th Dist.] 1999, no pet.).